HOA Covenant Specificity and Authority

I wonder what the homeowner foresees as the likely outcome if the HOA would stop maintaining the lake...? (*)

Anyway, my comments are based on my community's experience with maintaining our detention pond which is part of our storm water management system.

Likes yours, our CC&Rs do not expressly say that we must maintain the pond. The do say that the purpose of our (condo) association is to maintain the property. I don't think we have any authority to *ignore* portion of it. Also, our county will inspect the pond periodically and will fine us if we fail to maintain it adequately. Between the CC&Rs and county water management standards, I believe we have adequate authority.

Your county/other municipal entity may also have water maintenance requirements. I would be surprised if they didn't.

If you're worried about it, you could run this question past your HOA's attorney. Hopefully you won't be charged an arm and a leg for what it a fairly general question.

(* If we fail to maintain the pond, owners who live near it will complain loudly. We get overgrown cattails and other weeds, which can trap trash. The water will stop draining properly and will become stagnant as the plants die back every year. We get mosquitos (plus the diseases they carry, including West Nile virus). We get other undesirable critters that live around the pond. The area may flood if we get a heavy storm. In short, the pond becomes a safety issue and smells bad. Cleaning it up after years of neglect is expensive and awful - it involves heavy equipment that damages the common area, and dredging smells to high heaven, ask me how I know.)

Your lake may be seen by the State/County as a storm water basin and would have to be properly maintained per EPA guidelines. The State/County would definitely see it as such if there is an outlet for the water to flow (vs. simply holding and evaporating).

Since all residents have access and use of the lake, it would be expected to be common area.

You should obtain a copy of the PLAT for your development from the county/city and see if the lake is deemed private property, common area or a mixture of both.

If the PLAT says it's common area - its the Association responsibility.
If the PLAT says it's private property - it would be the responsibility of those owners
If the PLAT says it's both - the Association should then only maintain the area that is considered common area.

If the PLAT says the lake is fully or partially private property, it will be very difficult to make changes to how things are done and I would strongly suggest consulting with legal counsel to understand the options and draw up any necessary legal documents.

Until the issue is resolved, I would recommend that the Association continues maintenance of the lake and shore line so they don't run afoul of any State or Federal storm water management regulations.

Thank you for your example

Obtaining the PLAT ($10 - $20 perhaps) and a legal opinion ($300 to $600 per hour) should put the issue to rest for that individual and at minimal cost to the Association. It would also resolve the issue for future boards.

JohnsonJ,

1.
(a)
Yes, the HOA has an obligation under the covenants (for one) to care for the lake. Why? Because this is not a "general statement" here. Why? Because first, The lake is clearly shown on plats as a common area, correct? Second, the covenants say the HOA has the maintenance responsibility for common area. There is zero dispute about this, correct?

(b)
In certain covenant and contract disputes, lack of specific reference to xyz can be problematic. As well specific reference to abc can be problematic, depending on which side of a dispute one is on.

2.
What do you mean by "statutory status"? I suspect you mean that there has been a 30-year course of conduct, with acquiescence of this conduct by the owners. If an owner sues, can this matter? Yes. To have an idea of how much this might matter, more legal research by a well-qualified attorney is needed.

3.
I see nothing to indicate that the language is ambiguous. If you think otherwise, what is your evidence for the lake not being a "common area"?

JohnsonJ,

Is this HOA a corporation?

If so, does the corporation own the lake?

It sounds like all owners have something like an easement (in one form or another) onto other owners' portions of the lake.

If I were you, I would stop calling the lake "common area." "Common area" has an exact meaning in HOA-land. This lake is not "common area." As well your covenants never use the term "common area."

I know Michigan and its inland lakes pretty well. I expect the Michigan case law is extensive.

I am not convinced (with certainty) that just because the HOA has billed all owners for years for maintaining individual owners' property, the HOA has a good legal case for continuing to do so going forward.

This is an advanced topic. I do not think anyone here can give you a very good answer.

One can check the Michigan case law with the following search:

"lake" "ownership" site:https://law.justia.com/cases/michigan/

But the case law usually can only give one a bit of an idea of how the courts and the law contemplate your HOA's situation. What is in the CC&Rs, plats, Articles of Incorporation and perhaps more matters. Summarizing the covenant as you did at the outset is not going to work. An attorney would reject your summary and ask you to provide all of the aforementioned governing documents, then inform you she will get back to you in a week (if that).

Pardon my lecturing. I think you are in fact off to a good start in figuring out who has the responsibility for what here. But much more reading and study by a professional (a well-qualified attorney) is needed.

To say the least, I think the goal here should be to avoid the courts. Because a judge will push for mediation; the court process takes years; the attorney fees will be expensive.

Perhaps what is needed is preparation of a "Lake Maintenance Agreement." This would be similar to a "Road Maintenance Agreement" that many folks (who often lack a HOA) agree to to minimize disputes. All pitch in to maintain the road, possibly in some proportion to estimated usage.

An attorney would have to prepare this agreement.

If one googles on "Lake Maintenance Agreement," one will see real-life examples.

Sometimes you just need to put people on ignore. The lake is on HOA common area and the HOA is responsible for maintenance. What’s the next complaint, the HOA shouldn’t spray for flying insect control because they not on surface?

Well, if it's only one person, I'd leave it alone unless and until other people bring this up or this person wants to duke this out in court. Don't be afraid of getting a letter from an attorney - letters are one thing, going to court is another, winning is a third and collecting follows that (the most important part) and all that depends on how the judge views all this. You never know what will happen in court and in this case, it's quite possible the owner ran this by an attorney, didn't like the response and now thinks if she/she can come up with some gobbdygook about the documents, the board will say ok, lower assessments or spend it elsewhere. My spidey sense tells me this is about money or building something (or not) on his/her portion of land accessing the lake. Probably both.

I agree this owner likely has an ax to grind about something. J.P.Morgan said there are two reasons why a man (or woman) does something - the one he tells people and the real one. I'm wondering what the real reason is after 30 years. How long has this owner lived there - if it's been several years, during which he/she knew what the assessments were going for, why is this an issue now? If you can figure that out, that may give you a better idea on how to proceed.

Well, like I said, let THEM prove their point - anyone can say anything, but proving it is something else again. If they want to push the issue, they can go ahead and sue. Maybe they'll win, maybe not. If they win, any money would come from the association, which gets all its funding from the homeowners - wonder if they've run any of this by the other neighbors?

And let's assume they're right - how do they suggest this be resolved? Do they want to pitch maintenance altogether so assessments decrease? Who's responsible if someone goes out to swim, fish or other stuff, gets injured or drowns and wants to sue someone? If it's the association, the question of whether the lake is common area or not will come up because if you can't show who owns it, you can't show who should be held responsible, so someone might decide "okie-doke, we'll just sue all the homeowners because they all live around that lake and should be aware of what's in it, blah, blah, blah."

At present, I tend to agree that what the HOA is doing is not legal.

If I were an owner I would not be happy that one way or another, the HOA is undertaking the liability that goes along with improper maintenance.

"Expressio unius est exclusio alterius" is one of the legal principles that would apply here, if push came to shove.

In short, whoever is saying that one reason the HOA should not be maintaining the lake is because of expressio unius est exclusio alterius is on solid ground.

No covenant for HOA maintenance. No HOA maintenance.

Otherwise you are saying HOAs should maintain the front lawns of all homes in a subdivision, even when the covenants say nothing of the sort.

So, the HOA doesn't own the lake, there's no public access to the lake (which I don't think is 100% true - you'd be surprised what people are capable of when motivated), and property surveys extend to the centerline of the lake.

Throughout all this, you still haven't said why this person (or three) is now saying the HOA isn't mandated to care for the lake because it's not mentioned in the CCRs. I don't know why you haven't answered that question - there has to be a reason this has come up and if you state what it is, you might get more useful information. If the language in the documents is the only thing this person can come up with, I don't see why you're tying yourself up into knots. How many owners are we talking about - 10 or 15 out of, say 30, would warrant closer review, One person asking questions isn't necessarily bad, because he/she might come up with something no one's thought of and should have. However, if you don't sit down with this person and dig to see what the real issue is, you might not get the information you really need to make a decision.

Someone or something has to care for the lake and it would seem to make sense to have some sort of rules regarding its use to ensure you guard against pollution, invasive species or whatever. If all the homeowners own equal portions, it makes sense to have some sort of entity to manage that. Are there other communities similar to yours in the area - if so, has anyone asked they handle maintenance? Have you checked with your secretary of state's office or whoever maintains the articles of incorporation and read them to see what they say regarding the lake?

At this point, you're probably better off doing what you really should have done at the start, and that's consult the association attorney. Maybe you should also speak to whichever agency regulates bodies of water- they can't give you legal advice, but might be able to tell you what their expectations are and from there, the community can decide if they want to adjust the documents, as has been suggested.

What is the wording after this, regarding the listed specifics?

By any chance does the covenant say something like, "services and facilities shall include, but are not limited to, the following"?

Given the listed specifics, so far I am surprised that some kind of express provision for maintenance of the lake does not seem to exist. I guess it would not be the first time a developer built around a lake and figured that down the road, the parties with a legal interest would figure things out.

JohnsonJ, plus an amendment of this nature, hitting people in the pocketbook fairly hard, would likely require a unanimous vote of all owners to pass muster in a court. (The courts have said amendments must be reasonable. Whether such an amendment here is reasonable is not a slam dunk.)

You all appear to have a game of chicken going amongst owners, the HOA and if anyone is man enough to raise this with the insurer (and they should be), the insurer. Hopefully a well-qualified HOA attorney is advising you all.

Words per sentence = 23.4

Sentences per paragraph = 4.7


[W]hen average sentence length is 14 words, readers understand more than 90% of what they’re reading. At 43 words, comprehension drops to less than 10%.

Studies also show that sentences of 11 words are considered easy to read, while those of 21 words are fairly difficult. At 25 words, sentences become difficult, and 29 words or longer, very difficult.

That's the spirit.

You are misunderstanding the principle and applying it incorrectly. Example: the elevators.

For those who may not know, Expressio unius est exclusio alterius means express reference to one matter excludes all others.

I've only seen courts apply this principle once for HOAs and that was on enforcement.

An argument was made that since the covenants specified enforcement via court of law or in equity that that the Association could not use monetary penalties (aka fines) to enforce the covenants (as the covenants did not mention monetary penalties for enforcement).

To determine if the principal might apply, one would have to read the governing documents.

To specify that the principal would apply, one would have to obtain a court ruling.

The correct legal reading and Latin translation of expressio unius est exclusio alterius is "the expression of one thing is the exclusion of another" (or "the other" not "all others"). At times this distinction can make a difference.

To see examples of when appeals and higher courts have applied expressio unius est exclusio alterius to an association declaration, one need only google using the following or similar:

"expressio unius est exclusio alterius" "condominium" site:https://law.justia.com/

"expressio unius est exclusio alterius" "homeowners' association" site:https://law.justia.com/

An example where a Michigan appeals court applied the principle to the Declaration of a homeowners' association: https://law.justia.com/cases/michigan/court-of-appeals-unpublished/2015/319087.html

One can put the word "unius" into the Davis-stirling.com search engine and see California examples of applying the principle to association declarations. The OP might wish to review this: https://www.davis-stirling.com/HOME/Case-Law/Dover-Village-v-Jennison . Consider how this California court's reading of a Declaration compares to a reading of his Declaration.

No doubt other examples from condo and HOA court decisions nationwide can illustrate the point as well.

The courts have applied the principle extensively over the decades (centuries?) to the interpretation of statutes and contracts in general.

It is a well-known principle. Its application makes perfect sense as one tries to glean what an author of a declaration, contract or statute was trying to do.

You had best take care to state this a lot. Because as soon as you use it once, a court could reasonably question whether you did not mean this to apply elsewhere.

Let the lawyers do the drafting of governing documents.

Why do you (JeffT2) believe the lake is "common property"?

That sounds like a reasonable rule concerned use of common areas.

Got an example from the case law where common area is not involved?

The Restatement examines the case law nationwide and summarizes what it says. The Restatement is clear that this broad authority exists only in the case of (1) common areas; or (2) where covenants restrict land use of privately owned land.